Citation Nr: 0519661
Decision Date: 07/20/05 Archive Date: 08/03/05
DOCKET NO. 98-14 658 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to Dependency and Indemnity Compensation (DIC)
benefits under 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Trueba, Counsel
INTRODUCTION
The appellant is the widow of the veteran who served on
active duty from September 1941 to April 1945. He died in
May 1995.
The case comes before the Board of Veterans' Appeals (Board)
on appeal from a July 1997 rating decision by the New York,
New York, Regional Office (RO) of the Department of Veterans'
Affairs (VA).
The Board notes that the appellant presented testimony at the
RO before the undersigned Veterans Law Judge (VLJ) in August
2004. A copy of the hearing transcript issued following the
hearing is of record.
FINDINGS OF FACT
1. VA has properly developed and obtained all relevant
evidence needed for an equitable disposition of, and
adequately notified the appellant of the evidence necessary
to substantiate, the issue addressed in this decision.
2. It is not shown that VA treatment resulted in any
additional disability, or was in any way a factor in causing
or hastening the veteran's death.
CONCLUSION OF LAW
The criteria for establishing entitlement to DIC benefits
under 38 U.S.C.A. § 1151 are not met. 38 U.S.C.A. §§ 1151,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.358, 3.361 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Pursuant to the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), see 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002), VA first has a duty to notify the appellant and the
accredited representative of any information and evidence
necessary to substantiate his/her claims for VA benefits.
See generally 38 U.S.C.A. §§ 5102, 5103 (West 2002). In
August 2001, VA issued regulations to implement the VCAA.
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a) which is effective August
29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c), and
3.159(c)(4)(iii), VA stated that the provisions of this rule
merely implement the VCAA and do not provide any rights other
than those provided in the VCAA. Accordingly, in general
where the record demonstrates that the statutory mandates
have not been satisfied, the regulatory provisions likewise
are not satisfied.
The VCAA requires that VA must provide notice that informs
the claimant (1) of any information and evidence not of
record that is necessary to substantiate the claim, (2) of
the information and evidence that VA will seek to provide,
and (3) of the information and evidence that the claimant is
expected to provide. Furthermore, VA must "also request
that the claimant provide any evidence in the claimant's
possession that pertains to the claim." 38 U.S.C.A.
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004); and
VAOPGCPREC 7-2004; 69 Fed. Reg. 59989 (2004).
In this case, for the reasons set forth below, the VA has
complied with the VCAA, as well as the implementing
regulations, in reference to the issue addressed in this
decision.
First, VA has a duty to notify the claimant and the
representative, if any, of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A. §
5103A (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The appellant has been
informed of the evidence needed for a grant of DIC benefits
under 38 U.S.C.A. § 1151, via a November 2002 RO letter, the
July 1997 rating decision, the July 1998 statement of the
case (SOC), and the January 2004 supplemental statement of
the case (SSOC). In addition, the November 2002 RO letter,
and the January 2004 SSOC also provided the appellant with
specific information concerning the VCAA. Thus, no further
notices are required. See Quartuccio, supra.
Secondly, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the case. 38 U.S.C.A. §
5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, all
identified and available evidence has been obtained,
including all relevant treatment records and examination
reports. Thus, the Board finds that no additional evidence,
which may aid the appellant's claim or might be pertinent to
the bases of the claim, has been submitted, identified or
remains outstanding, and the duty to assist requirement has
been satisfied. See Quartuccio, supra.
The claimant has been provided with every opportunity to
submit evidence and argument in support of her claim and to
respond to VA notices. Although the VA notices that were
provided to the appellant do not contain the "fourth
element" per se, the Board finds that the appellant was
otherwise fully notified of the need to give to VA any
evidence pertaining to her claim. By the informational
letter, and the SSOC, VA satisfied the fourth element of the
notice requirements. Therefore, to decide the appeal
regarding the appellant's claim discussed herein would not be
prejudicial error to the claimant. See VAOPGCPREC 7-2004; 69
Fed. Reg. 59989 (2004).
The VCAA requires that the duty to notify is satisfied, and
that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, due process concerns have been
satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993);
Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R.
§ 20.1102 (harmless error). In this case, because each of
the four content requirements of a VCAA notice have been
satisfied, any error in not providing a single notice to the
appellant covering all content requirements is harmless
error. See also Mayfield v. Nicholson, 19 Vet. App. 103
(2005).
In this case, the evidence shows that the veteran died on May
[redacted], 1995. The veteran's widow contends, in the notice of
disagreement and during the August 2004 hearing, that the
veteran underwent surgery in December 1994 and January 1995
at Mt. Sinai Hospital, where he subsequently passed away of
carcinoma of the stomach. The widow feels that the veteran's
carcinoma of the stomach was undetected by physicians
treating the veteran at the St. Albans VA Medical Center
during the two years prior to his demise. She contends that
the lack of treatment and diagnosis by VA is what entitles
her to benefits pursuant to § 1151.
With respect to the evidence, the service medical records
show the veteran was treated for anxiety-tension and
psychoneurosis mixed type during his active service. An
April 1945 report of a Board of Medical Officers found the
veteran unfit for military service due to anxiety tension
state, severe and acute of cause undetermined.
Various VA examination reports, including dated in October
1946, April 1949, September 1969, March 1970 and March 1971,
show diagnoses for psychoneurotic anxiety state, pes planus,
overriding right 5th toe, anxiety reaction, psychoneurosis
obsessional state, anxiety neurosis with phobic obsessive and
compulsive symptoms, and obsessive compulsive neurosis.
Records from the CHP Medical Group dated in 1995 include a
September 1995 statement indicating that the veteran was
first diagnosed in December 1994 with carcinoma of the
stomach with subtotal gastrectomy subsequently performed.
The veteran underwent chemotherapy from March 1995 to May
1995, but his condition steadily deteriorated. In May 22,
1995, he was admitted to Calvary Hospital where he passed
away on May [redacted], 1995.
Records from the Mount Sinai Medical Center dated form 1994
to 1995 show the treatment the veteran received for stomach
cancer. December 1994 notations show a diagnosis of invasive
well-to-poorly differentiated gastric adenocarcinoma. And,
January 1995 notations show he underwent a partial
gastrectomy.
Records from the Flushing Hospital dated in 1994 further
reflect treatment for stomach cancer. November 1994
notations show a diagnosis of infiltrating adenocarcinoma
with focal signet ring cell features. And, 1995 records from
the New York Hospital Medical Center of Queens show the
veteran was seen for rectal bleeding ulcers and melena.
Copious VA treatment records dated from 1949 to 1995,
including from the Brooklyn and St. Albans VA Medical
Centers, show the treatment the veteran received over time
for gastric and heart problems, among other health problems.
More importantly, the record includes a January 2004 VA
medical opinion which indicates the veteran's claims files
were reviewed. The VA doctor indicated that the veteran had
a diagnosis and treatment for gastric ulcer from 1984 with
intermittent abdominal pain symptoms. No alarm signs, such
as weight loss were present, and they were actively pursued.
In addition, fecal occult blood tests and rectal exams were
offered, but the veteran did not allow the tests or would
outright refuse. Furthermore, the VA doctor notes that the
medical clinic follow up notes do not contain any reference
to the veteran's gastric carcinoma. There is a November 1994
pathology report showing infiltration adeno carcinoma, and
the veteran's last clinical appointment was in August 1994.
In the VA doctor's opinion, there was no failure to diagnose
gastric cancer as up to the last entry, the veteran's
symptoms were not of any alarming nature (i.e. weight loss,
non-intermittent pain, anemia, worsening angina pectoris, or
any gastrointestinal hemorrhage). Moreover, the VA doctor
noted that the chances offered to the veteran (fecal occult
blood test, rectal exam) were stumped by the veteran's own
non-compliance, and it was obvious that the gastric cancer
was diagnosed by outside physicians following an admission
for melena. In sum, the VA doctor concluded that the VA
treating physicians did not fail in diagnosing the veteran's
cancer based on the facts available to them at the time.
Lastly, during the appeals hearing, the appellant submitted
photocopies of the labels on the veteran's prescription
medication.
With respect to the applicable law, the law provides that
compensation shall be awarded for a qualifying additional
disability or death in the same manner as if such additional
disability or death were service-connected. For purposes of
this section, a disability or death is a qualifying
additional disability if the disability or death was not the
result of the veteran's willful misconduct and (1) the
disability or death was caused by hospital care, medical or
surgical treatment, or examination furnished the veteran
under any law administered by the Secretary and the proximate
cause of the disability or death was (A) carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on the part of the Department in
furnishing the hospital care, medical or surgical treatment,
or examination, or (B) an event not reasonably foreseeable.
38 U.S.C.A. § 1151.
Effective September 2, 2004, the regulations pertaining to
claims for compensation pursuant to 38 U.S.C.A. § 1151 filed
on or after October 1, 1997 were amended. See 69 Fed. Reg.
46,426 (Aug. 3, 2004). Those regulations largely implemented
the provisions of 38 U.S.C.A. § 1151.
In determining whether a veteran has an additional
disability, VA compares the veteran's condition immediately
before the beginning of the hospital care or medical or
surgical treatment upon which the claim is based to the
veteran's condition after such care or treatment. 69 Fed.
Reg. 46426, 46325 (Aug. 3, 2004) (to be codified at 38 C.F.R.
§ 3.361(b)).
To establish causation, the evidence must show that the
hospital care or medical or surgical treatment resulted in
the veteran's additional disability. Merely showing that a
veteran received care or treatment and that the veteran has
an additional disability does not establish cause. 69 Fed.
Reg. 46426, 46325 (Aug. 3, 2004) (to be codified at 38 C.F.R.
§ 3.361(c)(1)).
Hospital care or medical or surgical treatment cannot cause
the continuance or natural progress of a disease or injury
for which the care or treatment was furnished unless VA's
failure to timely diagnose and properly treat the disease or
injury proximately caused the continuance or natural
progress. 69 Fed. Reg. 46426, 46325 (Aug. 3, 2004) (to be
codified at 38 C.F.R. § 3.361(c)(2)).
To establish that carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on
VA's part in furnishing hospital care, medical or surgical
treatment, or examination proximately caused a veteran's
additional disability or death, it must be shown that the
hospital care or medical or surgical treatment caused the
veteran's additional disability or death; and (i) VA failed
to exercise the degree of care that would be expected of a
reasonable health care provider; or (ii) VA furnished the
hospital care or medical or surgical treatment without the
veteran's informed consent. Determinations of whether there
was informed consent involve consideration of whether the
health care providers substantially complied with the
requirements of 38 C.F.R. § 17.32. Minor deviations from the
requirements of 38 C.F.R. § 17.32 that are immaterial under
the circumstances of a case will not defeat a finding of
informed consent. 69 Fed. Reg. 46426, 46325 (Aug. 3, 2004)
(to be codified at 38 C.F.R. § 3.361(d)(1)).
Whether the proximate cause of a veteran's additional
disability or death was an event not reasonably foreseeable
is in each claim to be determined based on what a reasonable
health care provider would have foreseen. The event need not
be completely unforeseeable or unimaginable but must be one
that a reasonable health care provider would not have
considered to be an ordinary risk of the treatment provided.
In determining whether an event was reasonably foreseeable,
VA will consider whether the risk of that event was the type
of risk that a reasonable health care provider would have
disclosed in connection with the informed consent procedures
of 38 C.F.R. § 17.32. 69 Fed. Reg. 46426, 46325 (Aug. 3,
2004) (to be codified at 3.361(d)(2)).
After careful review of the evidence on file, the Board
concludes that the preponderance of the evidence is against
the claim of entitlement to Dependency and Indemnity
Compensation (DIC) benefits under 38 U.S.C.A. § 1151. The
January 2004 VA medical opinion above discussed specifically
notes that VA treating physicians did not fail in diagnosing
the veteran's cancer based on the facts available to them at
the time. Other than the appellant's own statement, she has
failed to submit any objective medical evidence in support of
her contentions that the veteran's death is related to the
VA's failure to properly treat and diagnose the veteran's
stomach cancer. The appellant's statements, as a layperson,
with respect to medical causation, the standard of medical
care applicable, or the need for medical procedures, do not
constitute competent medical evidence. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1)
(2004).
The Board notes that the claim in this case was filed prior
to October 1, 1997. Therefore, the previous version of
§ 1151 in effect prior to that date may also be applicable.
See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).. The
previous version of the statute stated that where it is
determined that there is additional disability resulting from
a disease or injury or an aggravation of an existing disease
or injury suffered as a result of training, hospitalization,
medical or surgical treatment, or examination, compensation
will be payable for such additional disability. 38 U.S.C.A.
§ 1151 (West 1991). For claims filed prior to October 1,
1997, the appellant is not required to show fault or
negligence in medical treatment. See Brown v. Gardner, 115
S.Ct. 552 (1994).
The VA General Counsel has held that under the provisions of
38 U.S.C. § 1151 applicable to claims filed prior to
October 1, 1997, benefits may be paid for disability or death
attributable to VA's failure to diagnose and/or treat a
preexisting condition when VA provides treatment or an
examination. Disability or death due to a preexisting
condition may be viewed as occurring "as a result of" the
VA treatment or examination only if a physician exercising
the degree of skill and care ordinarily required of the
medical profession reasonably should have diagnosed the
condition and rendered treatment which probably would have
avoided the resulting disability or death. The factual
elements necessary to support a claim under § 1151 based on
failure to diagnose or treat a preexisting condition may vary
with the facts of each case and the nature of the particular
injury and cause alleged by the claimant. As a general
matter, however, entitlement to benefits based on such claims
would ordinarily require a determination that: (1) VA failed
to diagnose and/or treat a preexisting disease or injury; (2)
a physician exercising the degree of skill and care
ordinarily required of the medical profession reasonably
should have diagnosed the condition and rendered treatment;
and (3) the veteran suffered disability or death which
probably would have been avoided if proper diagnosis and
treatment had been rendered. VAOPGCPREC 5-2001; 66 Fed. Reg.
33312 (2001).
However, even pursuant to the previous version of the
statute, and the interpretation provided by the VA General
Counsel regarding claims based on a failure to diagnose, the
evidence does not show entitlement to DIC pursuant to § 1151.
The evidence of record does not show an additional disability
as a result of training, hospitalization, medical or surgical
treatment, or examination. The January 2004 examiner's
opinion did not find that VA treatment in any way caused an
additional disability. That examiner found that there were
no alarm signs indicative of the veteran's gastric carcinoma.
That examiner felt that a physician exercising the degree of
skill and care ordinarily required of the medical profession
would not have reasonably diagnosed the condition in the
absence of alarm signs. Therefore, the Board finds that the
criteria for entitlement to benefits pursuant to § 1151 based
upon the failure of diagnose a disorder are not met.
Therefore, benefits pursuant to § 1151 are not warranted
pursuant to the previous version of the statute.
The Board finds that the preponderance of the evidence is
against the claim, and that the claim of entitlement to DIC
benefits under 38 U.S.C.A. § 1151 must be denied.
ORDER
Entitlement to DIC benefits under 38 U.S.C.A. § 1151 is
denied.
____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs